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October 30, 2005 - Odd Challenges on the Limits of Free Speech

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Monday, October 24, in the New York Times one could find this


You might have thought that the White House had enough on its plate late last month, what with its search for a new Supreme Court nominee, the continuing war in Iraq and the C.I.A. leak investigation. But it found time to add another item to its agenda - stopping The Onion, the satirical newspaper, from using the presidential seal.


What's the problem?

The Onion produces a streaming audio parody of the president's weekly radio address - now and then, not every week, as the latest is dated September 5 and concerns Hurricane Katrina. The problem is the header, containing a picture of President Bush and the presidential seal.

Here's what has happened:


"It has come to my attention that The Onion is using the presidential seal on its Web site," Grant M. Dixton, associate counsel to the president, wrote to The Onion on Sept. 28. (At the time, Mr. Dixton's office was also helping Mr. Bush find a Supreme Court nominee; days later his boss, Harriet E. Miers, was nominated.)

Citing the United States Code, Mr. Dixton wrote that the seal "is not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement."

Exceptions may be made, he noted, but The Onion had never applied for such an exception.



Well, putting aside the fair use doctrine and considerations of the legal protections afforded to satire and parody - discussed in the pages in June 2003 in relation to Fox News suing Al Franken and the Margaret Mitchell estate trying to stop publication of that novel The Wind Done Gone, and in July 2004 in relation to Ray Bradbury suing Michael Moore about the "Fahrenheit 911" film title and Mattel suing a Swedish artist for using Barbie Dolls satirically - the White House wants The Onion to cease and desist, as it were. The Onion prints a half a million hard copies a week and three million a week read it online. Who knows how many may think the president says these things?

As for The Onion, the Times tells us Scott Dikkers, the editor in chief, shot this back: "I'm surprised the president deems it wise to spend taxpayer money for his lawyer to write letters to The Onion."

And then he suggested the money be used instead for tax breaks for satirists.

The Onion's non-satiric lawyers are claiming the readers in question just aren't that dumb. THEY know The Onion does parody. They get a joke. The magazine's attorney, Rochelle H. Klaskin - "It is inconceivable that anyone would think that, by using the seal, The Onion intends to 'convey... sponsorship or approval' by the president."

Other points the attorney makes - there's a headline in the current issue "Bush to Appoint Someone to Be in Charge of Country." Duh. And anyway, The Onion and its website are free, so the seal is not being used for commercial purposes.

But they requested a formal application to use the seal. What the heck. Why not?

There has been no response to the application.

The Times, being an investigative newspaper, asked Trent Duffy, a White House spokesman, how this all came about, and got this response:


"Despite the seriousness of the Bush White House, more than one Bush staffer reads The Onion and enjoys it thoroughly," he said. "We do have a sense of humor, believe it or not."


Well, many refuse to believe that, and see this odd legal complaint as proof.

What's the point of making a fuss?

And haven't we seen the presidential seal on a podium in this or that "Saturday Night Live" sketch? Are they next?

Now as you might recall, Fox News had copyrighted the words "Fair and Balanced" for use identifying their news operation, and didn't like those words being used in the title of Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.


They lost.  A transcript of the hearing is here.

Barbie is a registered trademark of Mattel, but see this - 'Lawsuit Barbie' Fails for Mattel, Court upholds an artist's use of the doll in his series of photographs, Christine Steiner, The Los Angeles Times, Wednesday, January 07, 2004.

Ray Bradbury never filed a suit after all his comments.

And as mentioned here, there was that "sequel" to Margaret Mitchell's novel, Gone With the Wind, by a black author, Alice Randall. The Mitchell estate fought in the courts over Randall's right to publish this take on what happened at Tara after Rhett left the scene for good. The Wind Done Gone was finally published in late 2001, after a three-judge panel of the 11th US Circuit Court of Appeals on October 10, 2001 affirmed a previous court's decision to block an injunction against its publication. The copyright didn't apply to this "racial commentary" on what Mitchell had written.

But did anyone copyright or register as a trademark the presidential seal? Is it public domain?

What is the gripe?

Is this like someone making a fake police badge and impersonating an officer to do nasty things? Now that is illegal, but should the fellow in the Village People who dressed as a cop have been ordered to cease and desist, and made to dress as a civilian? What about Halloween "cop" costumes?

And shouldn't these White House staff folks been working on other things?

With Karl Rove distracted by his legal problems the White House staff is becoming far too undisciplined. He's not riding herd on them and they're getting pretty far "off message."

This may explain the nomination of the Church Lady, Harriet Miers, to the Supreme Court. They'd all been reading The Onion and got confused. They've started doing parody themselves.


Okay, is this parody? Or what is it?

On October 20, at the University of Florida, columnist Ann Coulter gave a speech to raise money for the Alachua County Republican Party. Eight hundred folks paid up to seventy-five bucks each to hear her speak, and after she got her thirty-grand speaking fee, and after the cost of food and beer - this was the third annual Ronald Reagan Black Tie and Blue Jeans BBQ - the Alachua County Republican Party got the rest. You do the math.

One wonders if the Young Republicans in our colleges are really paying attention in their economics classes.

The Universal Press Syndicate covered the event here in the Independent Florida Alligator, which has to be one of the great newspaper names of all time.

The scene?


The audience, decked out in patriotic garb and cowboy boots, fanatically surrounded Coulter before dinner, asking her to pose with them for pictures.

One woman caught Coulter's attention by begging for a picture, saying, "My husband loves you."

The Republicans got in the spirit of the night while enjoying an SUV-size trailer full of Budweiser beer.


Whatever. Her theme for the night was the weaknesses she saw in the Democratic Party.

"The Democrats complain about the Republican base being nuts. The nuts are their entire party."

And she warned these folks to not allow Democrats anywhere near foreign policy, "not even to keep them away from domestic policy."

And she defended the war in Iraq and ranted that the Democrats were "demoralizing America" when this war was "a magnificent success."

They ate it up.

But then there was this:


She also criticized the media for being liberal and Democrats for whining about their rights under the First Amendment.

"They're always accusing us of repressing their speech," she said. "I say let's do it. Let's repress them."

She later added, "Frankly, I'm not a big fan of the First Amendment."


What? Is this the new right-side Republican position? Is this where we're heading?

University of Florida College Republicans President Ashlee Black:


"I think that she's incredibly intelligent and outspoken. She's a little raw, but I think she balances the left's Michael Moore."


Ah yes, fair and balanced. Michael Moore and his kind like free speech, but what about the other side of the question?

One wonders if the Young Republicans in our colleges are really paying attention in their government classes.



So sue me.

Presidential and CIA Official Seals

From readers:


"You just don't get it, do you?  Ann Coulter obviously ghost writes for the Onion.  Obviously you miss good parody when you read it.  Get with the picture.   What are you - anyway - a biased liberal media hound?" – Rochester, New York


"Do you think it's possible that the White House meant the letter to The Onion as a joke? And on copyrighting the seal: Nobody, not even the government, can copyright government materials, but I'm pretty sure Congress can restrict use of the seal under federal law, which it seems they have done here" – Atlanta, Georgia



Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
See the Details page for the relevant citation.

This issue updated and published on...

Paris readers add nine hours....